Japan

International Focus

Background and History

In the sixties and seventies Japan saw a number of scandals
in which government agents were criticised for withholding information from the
public. In particular, the government was condemned for repeatedly failing to
publicise the fact that certain drugs and chemicals were known to be dangerous.
One government official, it emerged, had stopped taking the drug chloroquine
when he learned that it could cause blindness, but had failed to publish the
information on which he based his decision. Later, the Ministry of Health rejected
a request from the Japan Consumers Federation that it should explain its
reasons for approving the use of olt phenil phenol (OPP) as a food additive,
despite knowing that it may cause cancer. The government also failed to publicise
warnings about the dangers of the drug Thalidomide in a timely manner, and a
large number of babies damaged by it were born before the risks were disclosed
to the public. Several lawyers who acted
for the victims of this policy responded by demanding a freedom information
law. [1]

In March 1980, an umbrella organisation called the Citizen’s
Movement for an Information Disclosure Law was formed. Members included the
Japan Consumers Federation, the Housewives’ Federation, the Japan Civil
Liberties Union and other individuals and groups. It began to campaign for a
freedom of information law.[2]

Initially there was greater willingness to enact such a law
at local than at national level.[3] The Liberal Democrat Party was in the
middle of a forty year stint in control of the national government [4], and may
have developed an executive mentality which could only view freedom of
information as inimical to its interests. However, the Liberal Democrat’s monopoly
on power at the national level was not replicated at the local level, where
politics played out very differently. In 1982, Kanayama, a village in the
Yamagata prefecture, became the first place to adopt a freedom of information
ordnance. By 1988 twenty-five prefectures had some kind of regulation facilitating
the disclosure of information. In 2001,
when the coalition which, by then, controlled national politics finally enacted
country-wide freedom of information legislation, it drew on the lessons that
had been learned by legislators at a local level.

Japan is typically seen as a lightly regulated business
environment, in which the public, both as consumers and as citizens, are
sometimes insufficiently protected, whether from poor products or dangerous
practices. One very broad concept of freedom of information sees it as “filling
the gaps” and allowing members of the public to obtain the information they
need to protect themselves, in the absence of a more demanding regulatory
environment.[5]

The Law

The national law came into effect on 1 April 2001. It
creates a presumption that government agencies should disclose information when
asked to do so. This presumption is subject to six broadly worded exemptions.
Material need not be disclosed if it is:

1) “Confidential
business information”

2) “Individual
information”

3) Related to national
security or foreign policy

4) Related to criminal
investigation and prosecution

5) Policy deliberation
within government agencies,

6) Related to any of
a list of various other activities, including research and personnel
management.[6]

It should be noted that the policy deliberation exemption
would probably preclude the release of the information sought by the Japan
Consumers Federation regarding the government’s approval of the use of OPP.

Requests can be made in person, through the post or through
the website of the government agency to whom the request is directed. A fixed
fee of three hundred yen (currently £2.47) is charged. There is an additional
fee of 100 yen (82p) per hundred pages of documentation, and there can also be
a charge of 20 yen (16p) per page for photocopying.[7]

Article 10 of the Act requires that agencies respond to
requests within 30 days, and the data shows that they usually, but not always,
do so. The response time can be extended for a further thirty days if
necessary, and for longer if a “very large volume” of data is involved.[8]

If a request is rejected the requestor can ask an administrative
review board to reconsider the decision. There is no charge for this. The
boards are comprised of retired officials, lawyers, academics and other
prominent members of the community.[9] They are required to carry out their own
investigation into the request, and requestors are entitled but not required to
submit evidence and arguments for consideration. Review boards regularly order
the release of some or all the relevant information.[10] If they decline to do
so, the requestor may proceed to challenge their decision through the Courts.
However, in practice this process can prove lengthy and expensive, and such
cases are rarely pursued.[11]

Statistics on requests

The Table below [12] shows high disclosure rates early on the regime are masked by the measurement of partial and full disclosed requests together. When these results were split in 2008 and 2009 figures, low rates of full disclosure become apparent.

Requests

Requests/person

Disclosed...

or Partially disclosed

Not disclosed

In time

Appealed

2002

59,887

0.0005

96%

5%

unknown

2%

2003

73,348

0.0006

96%

4%

unknown

2%

2004

87,123

0.0007

97%

3%

unknown

2%

2005

78,639

0.0006

95%

5%

unknown

1%

2006

49,930

0.0004

89%

11%

99%

2%

2007

61,089

0.0005

95%

5%

99%

2%

Disclosed

Partially disclosed

2008

72,390

0.0006

35%

61%

4%

90%

1%

2009

76,870

0.0006

38%

58%

3%

88%

1%

Recent developments

Japan is currently governed by the Democratic Party of Japan.
Improvement of the information disclosure system was a key policy for them in
opposition, and in 2005 they unsuccessfully attempted to induce the national
Parliament to enact a bill revising the current freedom of information
legislation. Concerns included the fact that there is no time limit within
which administrative appeals must be heard, and the broad nature of the statutory
exemptions. It was also felt that the fact that courts may not examine
government records, even in closed proceedings, hinders their ability to form
the view that particular information should be disclosed.[13]

However, when the Democratic Party of Japan came into power,
instead of reintroducing the bill, they conducted a review of the issue. An
“Administrative Transparency Study Team” produced a number of reports, and the
Party planned to publish a new bill on 15 March 2011. However, four days before
that date, the “Great Earthquake” struck and all non-essential business was
delayed, as the government focused it resources on managing the crisis.[14]

On 22 April an information disclosure bill was submitted to
Parliament, but the Prime Minister who approved it was forced to resign on 26 August
and, although his successor is also of the Democratic Party of Japan, no
efforts have been made to enact the new freedom of information bill.[15]

Japanese FOI activists initially hoped that the delay merely
reflected the more pressing immediate priorities of a government managing
serious political and national troubles. However, on 7 October last year, the
Chief Cabinet Secretary submitted to Parliament a bill strengthening the
sanctions associated with leaking state secrets. The government justifies this
move with reference to several recent leaks of confidential security
information, including one which resulted in the names and addresses of
terrorist informants becoming public.[16] However, some activists are troubled by the security bill because, since
the Courts may not review private government records, they cannot assess the security
significance, or lack thereof, of information which the government will not
divulge. The state thus has first and final say on what it keeps hidden, and
could theoretically designate any embarrassing fact a “state secret”. The proposed freedom of information act,
unlike the bill the Democratic Party of Japan drafted while they were in
opposition, does nothing to remedy this situation, and allow the Courts to
supervise the system.[17] So, whether or not the new freedom of information
bill is enacted, it may be that FOI is no longer truly on the agenda of the Democratic
Party of Japan, or the Japanese government.

FOI on the blog

On 1 March, to some surprise, the Burns Commission concluded that the Freedom of Information Act was ‘generally working well’. Ben Worthy and Robert Hazell explain how the Commission came to this unexpected result and, drawing on the results three major research projects, argue that since it came into force in 2005 FOI has achieved […]

In July 2015 the government appointed a new independent commission to look into how the law on freedom of information (FOI) is working. Here, Ben Worthy, Peter John and Matia Vannoni explain how their field experiment provides evidence that FOI requests work, and that they are twice as likely to get a response than informal requests. […]

On Friday of last week, the government announced a new commission on Freedom of Information. Here, Ben Worthy offers his response to the announcement, arguing that the objections to the scope and usage of FOI that have been raised are nothing new, and furthermore aren’t unique to the UK. Further, he argues that the commission’s remit tilts […]